Citation Nr: 0730108
Decision Date: 09/25/07 Archive Date: 10/01/07
DOCKET NO. 05-08 920 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Atlanta,
Georgia
THE ISSUE
Entitlement to an evaluation in excess of 20 percent for the
residuals of fracture of the left humerus.
REPRESENTATION
Appellant represented by: Georgia Department of Veterans
Services
WITNESS AT HEARING ON APPEAL
The appellant
ATTORNEY FOR THE BOARD
Stephen F. Sylvester, Counsel
INTRODUCTION
The veteran served on active duty from August 1972 to
July 1974.
This case comes before the Board of Veterans' Appeals (Board)
on appeal of March and June 2004 decisions by the Department
of Veterans Affairs (VA) Regional Office (RO) in Atlanta,
Georgia.
Finally, for reasons which will become apparent, this appeal
is being REMANDED to the RO via the Appeals Management Center
(AMC) in Washington, D.C. VA will notify you if further
action is required on your part.
REMAND
A review of the record in this case raises some question as
to the current severity of the veteran's service-connected
residuals of fracture of the left humerus. In that regard,
based on a review of the veteran's claims file, it would
appear that he last underwent a VA orthopedic examination for
compensation purposes in May 2004, more than three years ago.
Since the time of that examination, the veteran has received
treatment on numerous occasions for his service-connected
fracture of the left humerus. However, to date, the veteran
has yet to be scheduled for an additional VA orthopedic
examination in order to more accurately evaluate the current
severity of his service-connected disability. See Caffrey v.
Brown, 6 Vet. App. 377, 381 (1994); Proscelle v. Derwinski,
2 Vet. App. 629, 632 (1992); see also VAOPGCPREC 2-95 (April
7, 1995).
Finally, the Board notes that, subsequent to the issuance of
the most recent Supplemental Statement of the Case (SSOC) in
May 2005, there were received numerous VA inpatient and
outpatient treatment records, many of which are pertinent to
the issue on appeal, which have not yet been considered by
the RO. More to the point, while the veteran's file now
contains records dating up to and through May 2007, it would
appear that the RO has considered only records dating up to
March 2005. Many of those records relate to and/or have a
bearing on the veteran's claim for an increased evaluation
for his service-connected left humerus disability, and must,
therefore, absent a waiver, be referred to the agency of
original jurisdiction (in this case, the RO) for initial
review. Significantly, during the course of a hearing before
the undersigned Veterans Law Judge in July 2007, the
veteran's representative specifically indicated that the
veteran did not wish to waive his right to initial RO review
of the evidence in question. See Transcript, p. 2.
38 C.F.R. § 20.1304(c) (2007).
Accordingly, in light of the aforementioned, the case is
REMANDED to the RO for the following actions:
1. Any pertinent VA or other inpatient
or outpatient treatment records,
subsequent to May 2007, the date of the
most recent evidence of record, should be
obtained and incorporated in the claims
folder. The veteran should be requested
to sign the necessary authorization for
release of any private medical records to
the VA. All attempts to procure records
should be documented in the file. If the
RO cannot obtain records identified by
the veteran, a notation to that effect
should be inserted in the claims file.
In addition, the veteran and his
representative should be informed of any
such problem.
2. The veteran should then be afforded
an additional VA orthopedic examination
in order to more accurately determine the
current severity of his service-connected
residuals or fracture of the left
humerus. The RO is advised that the
veteran must be given adequate notice of
the date and place of any requested
examination, and a copy of all such
notifications must be associated with the
claims folder. The veteran is to be
advised that failure to report for a
scheduled VA examination without good
cause may have an adverse affect on his
claim.
As regards the requested examination, all
pertinent symptomatology and findings
should be reported in detail, and all
appropriate studies should be performed.
Following completion of the orthopedic
examination, the examiner should
specifically comment regarding the
severity of the veteran's service-
connected residuals of fracture of the
left humerus, to include any and all
limitation of range of motion, as well as
functional loss associated with pain,
weakened movement, excess fatigability,
incoordination, swelling, and deformity
or atrophy of disuse. In so doing, and
to the extent possible, the examiner
should attempt to differentiate
symptomatology directly attributable to
the veteran's service-connected left
humeral fracture from that more likely
the result of other, nonservice-connected
conditions. The examiner should also
discuss factors associated with
disability, such as objective indications
of pain or pressure on manipulation.
Finally, the examiner should inquire as
to whether the veteran experiences flare-
ups associated with his service-connected
fracture of the left humerus. To the
extent possible, any additional
limitation of motion attributable to such
flare-ups should be described.
The claims folder and a separate copy of
this REMAND must be made available to and
reviewed by the examiner prior to
completion of the examination. Moreover,
a notation to the effect that this record
review took place must be included in the
examination report.
3. Thereafter, the RO should review the
veteran's claim for an increased
evaluation for his service-connected
residuals of fracture of the left
humerus, specifically taking into account
any and all VA and/or private treatment
records dated on or after March 2005.
Should the benefits sought on appeal
remain denied, the veteran and his
representative should be provided with a
Supplemental Statement of the Case
(SSOC). The SSOC must contain notice of
all relevant action taken on the claim
for benefits since the most recent SSOC
in May 2005. An appropriate period of
time should be allowed for response.
Thereafter, the case should be returned to the Board, if in
order. The Board intimates no opinion as to the ultimate
outcome in this case. The appellant need take no action
unless otherwise notified.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded.
Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law
requires that all claims that are remanded by the Board of
Veterans' Appeals or by the United States Court of Appeals
for Veterans Claims for additional development or other
appropriate action must be handled in an expeditious manner.
See 38 U.S.C. §§ 5109B, 7112 (West Supp. 2007).
_________________________________________________
C. CRAWFORD
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Appeals for Veterans Claims. This remand is in the
nature of a preliminary order and does not constitute a
decision of the Board on the merits of your appeal.
38 C.F.R. § 20.1100(b) (2007).